Yesterday (December 19, 2023), the Wisconsin Department of Natural Resources (WDNR) and Gov. Tony Evers halted rulemaking to establish Chapter NR 140 groundwater standards for four per- and polyfluoroalkyl substances (PFAS) after determining state law requires legislative action to adopt the standards as proposed.
In 2017, the Legislature and Gov. Scott Walker adopted the Wisconsin Regulations from the Executive In Need of Scrutiny Act, more commonly known by its acronym (the REINS Act). Among other things, the REINS Act requires agencies to stop work on any rule if an economic impact analysis (EIA) indicates that compliance and implementation costs of a rule are reasonably expected to be $10 million or more in any two-year period. Rulemaking may not proceed until legislation authorizing the agency to promulgate the rule is enacted or the agency modifies the rule to reduce compliance costs of the rule below the $10 million threshold.
In its final EIA for the proposed PFAS groundwater standards rule, WDNR concludes that implementation and compliance costs “reasonably expected to be incurred by or passed along to businesses, local governmental units, and individuals” as a result of the standards will exceed $33 million in the first two years after the rule takes effect. As a result, WDNR has determined that it must stop rulemaking.
“As required by state statutes, the DNR has stopped work on this proposed rule and has notified the state legislature,” WDNR said in a news release. “The state legislature will need to grant the DNR authority to continue the rulemaking process for setting PFAS standards...”
WDNR has also canceled a virtual public hearing on the draft rule scheduled for January 3, 2024.
Chapter NR 140 groundwater standards are Wisconsin’s ambient groundwater quality standards. After adoption, NR 140 enforcement standards and preventive action limits are utilized in a number of regulatory programs, including the Remediation and Redevelopment Program (as related to environmental remediation of sites impacted by hazardous substance releases) and the Wisconsin Pollutant Discharge Elimination System (WPDES) permit program (as related to discharges to groundwater regulated under state law).
Based on recommendations from the Wisconsin Department of Health Services, WDNR had proposed the following NR 140 groundwater standards:
- For PFOA and PFOS (individually or combined), an Enforcement Standard (ES) of 20 parts per trillion (ng/L) and a Preventive Action Limit (PAL) of 2 parts per trillion.
- For PFBS, an ES of 450 parts per billion (µg/L) and a PAL of 90 parts per billion.
- For HFPO-DA (“GenX”), an ES of 300 parts per trillion and a PAL of 30 parts per trillion.
In a letter released by the Governor’s Office, Gov. Evers asked two legislative Republicans to introduce legislation enabling the PFAS groundwater standards to move forward.
“As required under law, the DNR will pause rulemaking efforts on this proposed permanent rule until the Wisconsin State Legislature passes legislation explicitly allowing the DNR to continue this rulemaking,” Gov. Evers wrote. “To expedite resuming this important rulemaking process, and consistent with the commitment you made to me to pursue legislation to that effect, my office has drafted legislation in partnership with the DNR for the Wisconsin State Legislature to take up expeditiously. I urge you to do so without delay.”
In 2022, Wisconsin adopted drinking water standards and numeric surface water quality criteria for PFOA and PFOS. Those standards have been finalized and are not impacted by WDNR’s announcement yesterday.
Separately, Gov. Evers also directed WDNR to submit a Section 13.10 request to the Legislature’s Joint Finance Committee, seeking the release of $125 million set aside in a PFAS trust fund to WDNR for use in existing programs. Over the past several months, the Legislature has been considering PFAS legislation that would, among other things, create grant programs that could be funded through PFAS trust fund dollars.
Michael Best will continue to track rulemaking, funding, and other PFAS regulatory efforts at the state and national level. The environmental team at Michael Best has experience advising clients on PFAS-related issues. If you have any questions or concerns about how PFAS regulations may impact your business, please contact your Michael Best attorney or any of the authors listed here.